Public Bill Committee

[David Taylor in the Chair]

Further written evidence to be reported to the House

CM 6 Memorandum submitted by Dr. P. A. Howarth

David Taylor: Good morning. Welcome to the penultimate sitting of the Committee.

Clause 30 ordered to stand part of the Bill.

Clause 31

Power to write off arrears

Michael Weir: I beg to move amendment No. 93, in clause 31, page 33, line 10, at end insert—
‘(1A) In making a decision to extinguish liability for arrears of child support maintenance under subsection (1) the Commission shall have regard to the welfare of the child or children in respect of whom the arrears are due.’.
This is a probing amendment to explore the scope of the commission’s power to write off arrears and to seek confirmation that the wealth of the child or children will be taken into consideration in respect of any regulations that are made to do so. To be fair, we had a good debate on this subject in the last amendment. The Minister gave us an assurance that the welfare of the child would be paramount in this Bill and when the commission wrote off debt. We also had a fairly good debate on the circumstances in which debt may be written off and the involvement of the parent with care. On that basis, I do not intend to push the amendment, if the Minister is prepared to reiterate that that will be taken into account in any write-off. I would be satisfied by such an assurance and would withdraw the amendment.

Anne McGuire: In the light of the hon. Gentleman’s comments, I am pleased to reaffirm what I said in the earlier debate. Where we extinguish arrears of maintenance, the existing child support legislation, which already safeguards the interests of the child, will obviously be part of that decision. What underpins this Bill is the welfare of the children. I thank the hon. Gentleman for agreeing in advance of that reaffirmation to withdraw his amendment.

Michael Weir: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31ordered to stand part of the Bill.

Clauses 32 to 35 ordered to stand part of the Bill.

Clause 36

Pilot schemes

Paul Rowen: I beg to move amendment No. 50, in clause 36, page 35, line 21, at end insert—
‘(3A) The results and finding of all pilot schemes must be published in separate reports—
(a) every six months while the pilot scheme is in operation, and
(b) at the conclusion of every pilot scheme.’.
Like the previous amendment, this is a probing amendment. I seek a little more information from the Minister about the operation of pilot schemes and, in particular, how the results and findings of such schemes will be processed and published. If a pilot scheme is operated, the results should be made available. The amendment seeks to ensure that the results and findings are published every six months when a pilot scheme is in operation and at the conclusion of every pilot scheme. I should be grateful if the Minister could tell us how the Government intend to operate any pilot scheme.

James Plaskitt: I am grateful to the hon. Member for Rochdale for moving his probing amendment. Before looking at the effect of his amendment, let me deal with his other point and outline the purpose of piloting. Piloting allows policies and programmes to be tested, adjusted and evaluated before decisions are made as to whether they are applied in general. The clause enables the commission to pilot in circumstances that will benefit from that approach.
I shall give an example. We will be using the piloting powers to prove the effectiveness of using deductions from earnings orders as the primary method of collecting child maintenance from non-resident parents in employment, and they will allow us to test that method for up to two years. Pilots will be able to operate in specific areas and in relation to specified types of people, or to people selected through either specified criteria or on a sampling basis.
The amendment would compel the commission to produce six-monthly and final reports on any pilot. Although I do not disagree with the main thrust of the proposal, which is to publish the results of pilots, the hon. Gentleman’s wish that it should be done on a six-monthly basis would not achieve what he wants, and I shall explain why. Pilots can be conceived and designed for a wide range of reasons, such as considering the implementation of new services or the impact of a measure. The wide nature and possible scope of pilots would make it difficult to ensure that they were all able to meet the six-monthly reporting regime. Furthermore, six-monthly reports would be of little value, because the analysis of the findings would need to be carried out from such an early stage in the pilot that it would be unlikely to produce results of significant or sufficient quality. The most effective analysis can be gained only from cases that have had a sufficient journey through the system, allowing us to assess the full impact of changes in circumstances—for example, the impact of job change in the case of the direct earnings order pilot, which I mentioned earlier.
The commission, in consultation with the Department, will determine how best to report on research. As the hon. Gentleman knows, the Bill already requires the commission to report on all activities in each and every financial year. I emphasise that we share the hon. Gentleman’s concern about the value of publishing the results of pilots, but they are more effective if they are allowed to run their natural course in an appropriate length of time. The hon. Gentleman’s wish to have a fixed, regular reporting period would not produce reports of much light; they would probably impede the process. We want pilots to be of value and to give us real results, which they will. They will be published at the appropriate time, when the pilot has naturally expired.
For those reasons, I hope that the hon. Gentleman will withdraw the amendment.

Paul Rowen: In view of the Minister’s statement, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clause 37

Meaning of “child”

Michael Weir: I beg to move amendment No. 94, in clause 37, page 35, line 32, leave out ‘20’ and insert ‘25’.
The purpose of the amendment is to point out the slight contradiction between the Bill and the laws of Scotland. Members will note that clause 37 defines a child as
“a person who has not attained the age of 16, or has not attained the age of 20 and satisfies such conditions as may be prescribed.”
The amendment would increase the age from 20 to 25, because the definition of a child under Scots law, which can be found in the Family Law (Scotland) Act 1985, defines a child as
“a person—
(a) under the age of 18 years; or
(b) over that age and under the age of 25 years who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation”.
Under that Act, both parents are under an obligation to aliment the child while they are undergoing such training or instruction. Under the law of Scotland, both parents can be responsible for children until the age of 25 in those specific circumstances. I appreciate that the cases in which that will become a problem are few and far between, but they do exist. If the Bill is not amended, after the age of 20 anyone in Scotland who is relying on this definition of “aliment” may not be able to approach CMEC, because its responsibility would end when they reached 20. If someone’s aliment had been dealt with through CMEC, perhaps for a large number of years, it is conceivable that it would stop when they were 20, even if there were still an obligation for aliment to continue after that, the result being that the person would be required thereafter to raise an action of their own in the courts to seek aliment from one or both parents and to start all over again, with all the difficulties that could ensue.
Although I appreciate that the cases in which such a circumstance might arise are few and far between, there is a contradiction in this provision. Will the Minister consider the definition of “child” and, perhaps, include in regulations some reference to the fact that in Scotland things are different and allow the definition under the 1985 Act to be carried into the Bill in respect of the Scottish situation?

James Plaskitt: I appreciate the hon. Member for Angus raising that point. I recognise that in Scotland children have different rights. However, our agreeing to his amendment would have at least one perverse outcome under the law that we are seeking to pass here and, for that reason, as well as others, I hope that he will reconsider. Let me expand on that.
As the hon. Gentleman has said, under Scots law courts can make orders for aliment to be paid in respect of a person until they are 25, where they are in education or training for employment or for a trade, profession or vocation. That measure is based on the age by which a person would normally be expected to have completed their education, including any trade apprenticeships, and no longer need parental support.
Under the Children Act 1989, the courts in England and Wales have the power to make orders for maintenance on an application by a person over 18 whose parents are separated and who is receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation. Thus orders for maintenance can be sought in England and Wales for a similar period that aliment might be sought in Scotland.
We would not want to widen the definition of “child” in the way in which the hon. Gentleman has suggested for child maintenance purposes to define young adults substantially older than the age of 20 as “children”. Doing so would extend maintenance dramatically for some young people. Furthermore, when a non-resident parent themselves falls within the meaning of “child” under the Act, they are exempt from paying maintenance. If the amendment were agreed to, legislation would have to be amended so that children born to parents up to age 24 would not have to wait until their non-resident parent reached 25 to get maintenance from them. Amending legislation in the way in which the hon. Gentleman has suggested would cause more complication to the system than we have now, and we want to avoid that. I hope the hon. Gentleman understands that and will withdraw his amendment.

Michael Weir: I hear what the Minister has said, and I understand the difficulties. It looks like over-20s in Scotland will still have to go to the courts in the few cases where the provision applies. However, I accept the Minister’s reasoning. The amendment would have a slightly perverse application in respect of allowing parents under 25 to escape, and I would not wish to impose that upon the nation.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37ordered to stand part of the Bill.

Clause 38 ordered to stand part of the Bill.

Clause 39

Use of information

Paul Rowen: I beg to move amendment No. 51, in clause 39, page 36, line 6, at end insert ‘(subject to subsection (3))’.

David Taylor: With this, it will be convenient to discuss amendment No. 52, in clause 39, page 36, line 6, at end insert—
‘(2) The Secertary of State must publish a report on the systems that will be put in place to facilitate information sharing between Her Majesty’s Revenue and Customs and the Commission.
(3) A Minister of the Crown must make a motion in each House of Parliament in relation to the report mentioned in subsection (2) before the coming into effect of Schedule 6.’.

Paul Rowen: Amendments Nos. 51 and 52 refer to schedule 6, which deals with the use of information. I am sure that Members will recall our discussions in Committee when we considered several amendments dealing with the relationship between the commission and Her Majesty’s Revenue and Customs. In particular, we addressed concerns about the systems in both the Inland Revenue and the commission, and about whether all the information from the different computer systems at the Inland Revenue would be readily available to the commission. The specific issue that was raised was that of the non-resident parent who might seek to maximise their tax position to minimise their payments to the parent with care.
What this small amendment—again, it is very much a probing amendment—is seeks to do is to elucidate from the Government what particular process is currently in place. As I have said, several computer systems are already operating within the Inland Revenue, and they do not necessarily talk to each other. There is also the issue of the free flow of information to the commission. Before the new system becomes operational, we want the Government to present a report to Parliament that sets out how the system will operate.
We know from the history the problems that have been experienced with IT systems. Will we be embarking on a whole new IT system? If we are not doing that, what steps will be put in place to ensure that the existing system copes?

Albert Owen: The hon. Gentleman is making an important point about different Departments talking to each other. However, does he agree that the role of the Select Committee is to scrutinise each Department and to ensure that its reports are up to date? The Select Committee will get that information by scrutinising properly.

Paul Rowen: I agree with the hon. Gentleman. I think that the Select Committee will have a vital role to play, to ensure that, once the commission is up and running, the system is working. However, the purpose of the amendment is different. We know what has often happened in the past—when new IT systems have been introduced or there has been a new way of working, it has taken months or years for such information to become available.
From our previous discussions about the recovery process, we know the number of amendments that are being made to the current system to make it operate properly. I seek an indication from the Government about what will happen with those IT systems. Will there be a full-scale rewrite? If not, how will we ensure that that large amount of information is accurate? We have previously discussed the problems that the parent with care has when the non-resident parent seeks to deny the information, and also the concerns about the onus that is always being put on the parent with care. We fully support the use of Inland Revenue systems, but we want the Government to ensure that those systems—as I have said, several systems within Inland Revenue do not automatically talk to each other—work to the benefit of the parent with care and do not, as they do at the moment, considerably disadvantage them.
The purpose of asking for a report before the process starts is to enable the Select Committee, once the commission is operational, to have a benchmark. The Government have said that certain things will happen and that this is the process that will be gone through. The Select Committee will then be in a position to monitor progress. I am sure that the Government and members of the Committee agree that that is something that we all want to see. We want to see the commission get off to a flying start; we want to ensure that the correct systems are in place; and we want to ensure that the Select Committee has the wherewithal to monitor that process.

Tim Boswell: I welcome you to the Chair, Mr. Taylor. As I shall be away this afternoon, may I say anticipatorily how much I have enjoyed your and your colleague’s chairmanship of this Committee, which has been very constructive? I hope that the debate continues in that vein.
The hon. Member for Rochdale is right to raise the issue, and I agree with his general judgment that the resources and information available to HMRC should also be available to make the most accurate assessment of child support liabilities. There is no difference between us on that matter or on the specific intentions, which the hon. Gentleman has explained, about the need for a public understanding that the computer systems are going to talk to each other and are going to be fit for purpose. We are all at one on that.
It is worth a moment of the Committee’s time, if only because I enjoy Ministers giving me assurances, briefly to consider some of the civil liberties arguments. The clause’s heading is “Use of information”, and it occurs to me that there is always the potential—Ministers need to be aware of this and to acknowledge it—for abuse of information. I would simply like the Minister in responding to the amendment to give us assurances, which I recall, for example, being given to me on the Welfare Reform Act 2007, that the information will be used, as the schedule states, for the purposes of functions relating to child support, which is virtually the rubric of the schedule, and only for that purpose. The first point is that there will be security systems in place.
I flag up two particular concerns. First, persons within the agency or commission should use the system only when they are trained and when it is necessary for them to do so. It should not be available for fishing expeditions by other members of the commission. For example, there is the possibility of the parent with care seeking to find out information—there will be a strong temptation in some cases to do that, but it should be resisted.
Secondly, there is growing concern on both sides of the House about the retention of information, for example, on DNA databases for persons who may have no specific criminality or for whom the issue is long past. I am concerned about the retention of such material, and whether it might be in some way at a lower level of security or after a passage of time, straying out in to the public domain, where it should, could and generally will remain highly sensitive and properly controlled. That is not impossible. I do not wish my comments in any way to subvert Ministers’ intentions, which are both honourable and sensible, but we must always go through the business of assurances in such a sensitive area.

James Plaskitt: I understand entirely why the hon. Member for Rochdale has raised the issue. He is right to remind us of the history on IT and the experiences that we have had with the agency and its system. He is right to seek reassurances, and he is not alone in that. We all want reassurances about the IT.
The IT question divides into two parts, and in our brief debate we have strayed over both of them. First, there is the issue of the robustness of the IT within the agency as it is currently, and within what will become CMEC. We have had some discussions about the famous 509 defects and the speed with which they are being put right. I want to assure the hon. Gentleman that, as part of the operational improvement plan, there is very heavy investment in re-engineering the existing IT platform, and the bulk of the defects have been corrected. We are absolutely determined to ensure that the legacy system that moves under CMEC’s control is fit for purpose.
The second part of the IT question is the inter-relationship between IT and different parts of Government, and the exchange of data. The hon. Member for Daventry, who spoke on that matter, is of course right that we seek the reassurances that he wants. That is why laws have been passed to set the framework and to give us the means to control that important and sensitive area. Both human rights legislation and data protection legislation have been fully recognised in the way in which we are proceeding, and gateways and security systems are in place to ensure that data is transferred for the purpose for which it is intended and no other, and that there is no access beyond that which is authorised by the steps that we are taking.
The historical income information acquired from HMRC forms a central part of the proposed maintenance calculation arrangements. The use of HMRC historical income data and the proposed system of annual reviews will help to ensure that maintenance calculations are made more quickly, that they remain up to date and that the opportunity for manipulation of income by non-resident parents is minimised. We are absolutely committed to ensuring that the link providing HMRC data to the commission functions both efficiently and effectively.
We are currently working on how the information links will be established. We have set up a cross-governmental working group with colleagues from HMRC and the information division of the Department for Work and Pensions to ensure that the process receives all of the attention that it requires. We intend that work to inform the development of regulations that set out how the transfer of information will take place and how the commission will use it to the fullest effect. The work that we are doing will also benefit the commission as it considers the development and implementation of the new systems and how they will be used by staff.
I assure hon. Members that we will take every step necessary to ensure the smooth and effective transfer of information between HMRC and the commission, and we will be happy to make information on this topic available as and when it is appropriate to do so. Of course, the Select Committee will rightly want to pursue that matter as we proceed. Until then, I do not believe that there is any need to require a report to be presented as a motion to Parliament. Furthermore, schedule 6 sets out the information-sharing gateways in relation to not only HMRC, but a number of Departments. The amendment, and the report that it would require, concern the information gateway between the commission and HMRC and so would miss part of the picture in any case.
All the information-sharing gateways are important to the commission and are essential to enable it to carry out its functions. The gateways are also essential to HMRC, the Secretary of State for Work and Pensions and the Northern Ireland Office to enable them to carry out their functions. If the coming into effect of schedule 6 were dependent upon a motion submitted to each House of Parliament, it would not only delay the ability of the commission to use historical tax information in the calculation of child maintenance, but impact on the functions of a range of other Departments, agencies and bodies. The hon. Member for Rochdale was right to raise the issue, as was the hon. Member for Daventry, and I hope that I have given them the reassurances that they seek. In that light, I hope that the hon. Member for Rochdale will agree to withdraw the amendment.

Paul Rowen: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 ordered to stand part of the Bill.

Schedule 6

Use of information

Mark Harper: I beg to move amendment No. 120, in schedule 6, page 69, line 8, at end insert—
‘5A (1) This paragraph applies to information which is held for the purposes of Court proceedings in which the non-resident parent is a party—
(a) by the Court, or
(b) by a person providing services to the Court.
(2) Information to which this paragraph applies may be supplied—
(a) to the Commission, or
(b) to a person providing services to the Commission, for use for the purposes of functions relating to child support.’.
The amendment is relatively simple. It would make the schedule more comprehensive. It already covers sharing information between the commission and a range of Departments, but it omits allowing the commission to receive information from a court if it holds information for the purposes of child support which would be useful to the commission. The amendment would widen the scope a little to allow a court to share with the commission information that it held about an action to which the non-resident parent was party. We think that that would be a helpful provision which does not appear to be included at present.

James Plaskitt: I thank the hon. Gentleman for the amendment. We have no objection in principle to what he wants to achieve by it, but there is a difficulty about the means. If he will bear with me, I shall explain what that is.
We agree that it is right that parents or their representatives should be free to disclose information from court proceedings to the commission if they consider that such information would enable the commission to make fairer and more accurate maintenance calculations and, in short, provide a better service to parents and children. In most cases the information that would be disclosed would be details about a non-resident parent’s income, obtained in private proceedings, such as ancillary relief proceedings in divorce.
By removing the current need, in certain proceedings, to apply to the court for permission to pass that information on to the commission, we may speed up the process of getting maintenance flowing to children and ensure that maintenance calculations are fair and accurate. We support the free passage of information between parties to court proceedings, their representatives and the commission where that would help the commission to fulfil its functions more effectively, and we are working to find the best way to achieve that agreed objective.
The amendment would capture the information held by the Children and Family Court Advisory and Support Service and potentially information held by expert witnesses, which might include, for example, information on psychological assessments of parents and children. We are sure that that was not intended by those who drafted the amendment. It is not clear, at this point, how best to achieve the objectives that the hon. Gentleman and I share. It may need a change in primary legislation, or it might be possible by changing court rules. The relevant court committees, including the family procedure rule committee, are the bodies that make rules of court. They would need to discuss and consider proposed rule changes, and appropriate consultation would be needed before that could happen.

Tim Boswell: I appreciate the Minister’s care in explaining his thinking, and his welcome for the concept that my hon. Friends want to advance. Does he agree that at least in principle it would be better if the documents in question were court-generated documents, made available to the commission, rather than reports, perhaps at second hand, from one of the parties to the decisions, that are merely relayed to the commission? If there is, as it were, an official imprimatur, there will not be a great evidential argument about who has produced half the evidence, rather than the whole bundle.

James Plaskitt: That is exactly the issue that must be investigated. We want to achieve the supply, from court proceedings to the commission, of information that will help in getting a maintenance assessment done and in getting maintenance flowing. Devising a rule as has been suggested may do that, but everyone needs to look into what the practical implications of that approach would be. It sounds neat, but it might also exclude certain documents, which, nevertheless, could help to serve the purpose of the commission as to maintenance.
That is why we want the court committees to consider the matter. That will get us the best advice on how to proceed. There is no objection in principle to what the amendment is intended to do; we support that intention. It is a question of finding the right method. I hope that the hon. Gentleman will withdraw the amendment and leave it with us to figure out the best way to proceed.

Mark Harper: I welcome the Minister’s comments. Given his summary of the considerations, and his assurances that the matter will be looked at by the appropriate court committees, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Clause 40 ordered to stand part of the Bill.

Clause 41

Lump sum payments

Question proposed, That the clause stand part of the Bill.

Michael Clapham: The aim of part 4 is to provide payments to mesothelioma sufferers, both live and posthumous cases. It makes provision for the recovery of payments in certain circumstances. The Bill has been welcomed by a number of organisations, from the TUC through to the Association of Personal Injury Lawyers. However, I will raise one or two points as we go through the Bill.
I want to raise a couple of points. My first call for clarification is in relation to clause 41(3)(b), which says that we
“may prescribe different amounts for different cases or classes of cases or for different circumstances.”
I will refer to the Bill’s provisions as the new 1979 scheme. It will make payments, but until the fund is built up they will be less than those paid under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979. The payments will then be equal to those paid under the 1979 Act and the two will merge.
I first dealt with payments some years ago. The 1979 Act was introduced following the 1974 scheme to accommodate slate workers in Wales. Payments were based on the age of the claimant, the date of development of the disease and the degree of disability. However, since we moved from dual diagnosis, anyone who is diagnosed with mesothelioma is given an industrial injury disablement benefit at 100 per cent.—in other words, the disability is seen as a 100 per cent. disability. Therefore, it appears that the only difference in payments under the new scheme is likely to be based on age. Will the Minister clarify that? There may be other circumstances in which a claimant could have received a payment under the 1974 scheme. Is that the case, because I want to bring to her notice the 1974 scheme and some of its implications when we move on to clause 49?
My second point relates to subsection (5) and the procedure for dealing with such cases and deciding in a posthumous case on how a payment is to be divided. For example, will the Minister follow the procedure that has been set under the chronic obstructive pulmonary disease scheme which calls for letters of probate and then leaves the division to a solicitor? I know that we want to minimise the use of solicitors, and we do not want solicitors involved in this particular scheme. I assume that the Minister, or the Department, will call for letters of probate to determine the number of siblings and so on before deciding how the payment is to be divided in a posthumous case. Will she clarify that? We will be dealing with these claims as soon as the Bill becomes law. As she is aware, we are expecting at least 600 cases a year, which means that we will be dealing with 12 cases a week. In some of our constituencies, cases will be brought to our surgeries at an early stage.

Tim Boswell: The hon. Gentleman is an acknowledged expert on these matters, and I listen to him with great respect. Does he not agree that the person with mesothelioma may, given that they are afflicted with a terminal disease, wish to express certain priorities before their death in relation to the allocation of the assets and the lump sum? Does he not also agree that one of the sad facts of our modern society is that few people conclude wills, and instead leave matters to intestacy rules, which might lead to a different disposition of assets or entitlements from the one that they had intended or wanted?

Michael Clapham: I do not class myself as an expert; it is simply the case that, as a compensation officer years ago, I used to deal with claims that came under the 1979 Act. However, the hon. Gentleman’s point raises some of the complexities that the Minister will have to deal with. I should have thought that a claimant who wished the payment to be divided in a particular way would set that out in a will. Once a claimant has died, and we are left with a number of siblings, it will be difficult for the Minister to interpret what that person would have wished. However, I hope that the Minister will clarify some of the issues, particularly in relation to subsections (3)(b) and (5).

Andrew Selous: I welcome you to the Chair, Mr. Taylor, and I pay tribute to the hon. Gentleman. He says that he is not expert in these matters, but he has been extremely diligent in working on them in the House over a number of years, and most of us would certainly regard him as far more of an expert than we are.
Opposition Members very much welcome the proposals. It is the Opposition’s job to oppose where we think that the Government have got things wrong, and we have done so constructively on quite a few occasions with regard to this Bill. However, the provisions before us are a very worthwhile solution—indeed, they have been described as a creative solution—to the problems raised by an extremely distressing disease.
Let me briefly put on the record the scope of what we are talking about. The Library note tells us that there were 1,969 mesothelioma deaths in Great Britain in 2004, and that is expected to rise to about 2,400 deaths a year by 2013, before coming down to perhaps 500 deaths a year by 2050. It is quite important for the Committee to realise that although no employers today are—let us hope—putting workers or those who live near their premises at risk of mesothelioma, the legacy of such problems will be with us for a long time to come and there is a considerable tail.
I particularly welcome the fact that clause 41 breaks the strict link that used to exist in respect of having an occupation and being an employee. For the first time, lump sum payments will unquestionably cover family members, such as wives who washed overalls or children who went in the bath just after the worker’s wife had washed the overalls in it—indeed, a constituent told me that she used to go in the bath just after her father’s overalls had been washed in it. Also covered are people who lived next to relevant premises. They were not family members, but they had the misfortune to live or perhaps play next to a factory that was putting them at risk of mesothelioma.
I also welcome particularly the speed with which it is intended the payments will be made. It is perhaps worth putting on the record once more the fact that, once diagnosed, mesothelioma is generally fatal within 12 to 18 months. It is intended that payments will be made within six weeks of diagnosis. That is an ambitious target but, given the distressing speed with which the disease moves, it is right that we aim for such a speed of payment.
I echo the question about subsection (3)(b). It states that regulations
“may prescribe different amounts for different cases or classes of cases or for different circumstances”,
which is vague and opens a wide range of possibilities. I hope that the Minister will give the Committee as much detail as she can, which would be a great help to us.
 Paul Rowen rose—

Anne McGuire: You need to show leadership qualities.

Paul Rowen: I shall take that on board. You can be my campaign manager.
I welcome the clause. I have been a Member of the House for only a few years, but I know that the hon. Member for Barnsley, West and Penistone has been a stalwart on the mesothelioma issue. In my short time as a member of the asbestos sub-group of the all-party occupational safety and health group, I have seen the hard work that is done on the matter. I am also grateful to the Ministers who came up with the clause last year, when we were dealing with the Law Lords’ decision. The clause deals with some of the issues that arose in the courts by extending the availability of compensation and by ensuring that compensation is dealt with more quickly.
There was an asbestos factory in my constituency—at the time, it was the world’s largest—and it is a sad fact that within the community of Rochdale, more people are suffering from mesothelioma on a daily basis, and that will be the case for the foreseeable future.
As the hon. Member for Barnsley, West and Penistone has said, there is no doubt that although the process was well meaning, it was painful and protracted. It resulted in massive payments to lawyers, and it often did not benefit the people for whom it was designed. The clause will extend entitlement and ensure that money is paid more quickly, which is right and proper. Many people outside the House will be reassured by this Government measure.
I want to seek clarification from the Minister on a couple of points. First, as has been mentioned by the hon. Members for Barnsley, West and Penistone and for South-West Bedfordshire, the issues of classes, amounts and cases will be dealt with in regulation, and I hope that the Minister will give us some detail on how that will operate. I have been asked to ask the Minister for a reassurance that the 1979 Act payments, and the arrangements to uprate them, will not be affected by the new scheme.
My second point is about recovery. There is concern that millions of pounds of 1979 Act payments have been wrongly credited to employers and insurers over the years, and the Bill does not allow for the repayment of such moneys. The Bill ought to deal with that issue, so that decent payments are made under the new scheme. Will the Minister respond to those two concerns?

Anne McGuire: I am delighted to serve under your chairmanship again this morning, Mr. Taylor. I want to echo the comments made by colleagues: although the Bill is principally about the reform of our child maintenance system, it is entirely appropriate that we have managed to use the opportunity of early legislation to deal with an issue that has long been a source of great concern to colleagues from all parties. I hope that colleagues will also forgive me if I highlight the role played by my hon. Friend the Member for Barnsley, West and Penistone. He has been a doughty champion of the cause over many years, and I welcome his support and comments. It was entirely appropriate of him to highlight the fact that those changes have been welcomed by the trade union movement and those who have represented workers like him over a long period of time.
As colleagues have already mentioned, mesothelioma is one of the diseases covered by the 1979 Act. It is fatal and is caused by exposure to asbestos. As far as anyone is aware, there is no known cause of diffuse mesothelioma apart from exposure to asbestos and, as the hon. Member for South-West Bedfordshire has said, that exposure can be second or third hand. I want to thank him for his comments in support of this set of changes. He said that prognosis means that people can live between 12 and 18 months, but the average life expectancy is eight to nine months. It is a savage condition that takes people very quickly from this life, which is why we wanted to get the measure on the statute book as quickly as possible.
As colleagues have highlighted, one in 100 men born between 1940 and 1950 will die of the disease—the disease mainly, although obviously not exclusively, affects men. We are dealing with a horrific situation. Some sufferers of mesothelioma are not entitled to a lump sum payment under the 1979 Act, because of the work link that hon. Members have mentioned.
Let me pick up on a couple of specific questions. My hon. Friend the Member for Barnsley, West and Penistone asked how the payments would be laid out. Payments will be tapered according to age. It is right that payments are weighted to compensate for the poor prognosis associated with mesothelioma for those who are younger at the time they are diagnosed and who will die at a younger age as a consequence.
Some concerns have been raised about cases with more than one claimant, particularly when the principal claimant has died. I share my hon. Friend’s view that we want to keep the involvement of lawyers—with the greatest of respect to the hon. Member for Angus, although I do not know why we always say. “With the greatest of respect to lawyers”—and legal intervention to a minimum. This is about getting compensation payments as quickly as possible to the individuals concerned. If the claimant dies between claiming a payment and the payment being made—we are committed to turning the payments round within six weeks—the payment will be made to their estate, which will then be decided as usual. If there is no will, the normal probate rules will apply. Having said that, I cannot give a categorical assurance that there will not be circumstances in which there is legal intervention on behalf of one member of a family or another.
The hon. Member for Angus will correct me if I am wrong, but I think that the rules of probate in Scotland are slightly different from the rules in England—I am probably venturing into territory where I should not have put my toe in the water.

Michael Weir: There is no probate in Scotland—it is called confirmation—but the same basic rules apply: things are divided between the children. In Scotland, at least, there are strict rules, and it would be difficult, in the absence of a will, for one child to get a different split. I do not know whether that applies in England.

Anne McGuire: There may be some legal argy-bargy here, because there is at least one lawyer on the Labour Back Benches. All I am saying is that we want to get the money to the claimant as quickly as possible. If the claimant dies, we are bound by the normal rules. We hope that there are very few circumstances in which there would be legal intervention, but the legal involvement on how things are sorted out would probably occur within the family.
Colleagues also asked about the entitlement of dependants and how they would be paid. We shall follow the procedure laid out in the 1979 Act, and only one category of dependants can qualify for a payment under the Act. The dependants would qualify in the following order: the wife or husband or civil partner who was living with, or who was maintained by, the person with mesothelioma; children, meaning children under the age of 16; children under the age of 21 who are not receiving wages from full-time employment; and children of any age who are permanently unable to support themselves. Then it would be a person living with the person with mesothelioma as if they were husband and wife, or as if they were civil partners, and any other relatives who are completely or mostly dependent on the person with mesothelioma immediately before their death, which mirrors the situation in the 1979 Act.
The hon. Member for Rochdale asked whether the 1979 Act payments would continue to be uprated. Yes, I can confirm that they will be.
It is estimated that up to 600 people who do not currently receive help from the Government will receive an estimated £6,000 on average during the first year of operation of the new scheme. Hon. Members on both sides of the Committee recognise that no amount of money will ever compensate individuals and families for the suffering and loss caused by mesothelioma, but those who are suffering deserve some form of monetary compensation as quickly as possible. We need to get that money out as quickly as possible before it is too late, which is why we are acting within the terms of this legislation to put in place a scheme that will meet those needs.
Although we often discuss our industrial heritage, when we look at the wonderful industrial buildings around Britain, we must recognise that those buildings were built on the foundation of workers, many of whom are now paying a dear price for having been part of that regeneration, certainly after the second world war. I therefore thank hon. Members for their support.

Michael Clapham: The Minister has mentioned that the average payment will be in the region of £6,000, but there is, of course, the additional weekly payment of industrial injuries disablement benefit, which is paid at 100 per cent., which is about £140.

Anne McGuire: My hon. Friend is correct. As I have said—I do not want to repeat this endlessly—we want to get the compensation payment out to people quickly, so that they are not left wanting at a point in their lives when they just need recognition not only of their suffering but of the things that they must do in the last few months of their lives without experiencing the complications involved in gaining compensation. It is a self-funding programme. Money is recoverable through other compensation, when insurance pays out and so on, but it is a significant step—a great step—in the right direction. I thank hon. Members on both sides of the Committee for their support for this part of the Bill, notwithstanding, as I was about to say, that they might want to raise some issues of detail.

Question put and agreed to.

Clause 41 ordered to stand part of the Bill.

Clause 42

Conditions of entitlement

Anne McGuire: I beg to move amendment No. 143, in clause 42, page 37, line 8, leave out from ‘that’ to end of line 9 and insert
‘such requirement, if any, as may be prescribed by regulations as to the person’s connection with the United Kingdom is satisfied’.

David Taylor: With this it will be convenient to discuss the following amendments: No. 148, in clause 42, page 37, line 9, at end insert—
‘(d) The Secretary of State may by regulations include in subsection (c) such persons who have been employed by companies based in the United Kingdom and operating abroad.’.
Government amendment No. 144

Anne McGuire: Obviously, with your approval, Mr. Taylor, I shall respond as appropriate to the hon. Member for Rochdale in whose name amendment No. 148 has been tabled.
The two Government amendments make it clear that the Government may, as necessary, introduce regulations setting out the connections with the United Kingdom that a person with mesothelioma must have in order for them, or their dependants, to be able to receive a lump sum payment under the new scheme. The amendments make it clear that regulations may be made, depending on whether it is necessary to do so.
We want to ensure that payments from the new scheme are available to those who have contracted mesothelioma as a result of exposure to asbestos in the United Kingdom. I make it clear that we do not expect people exposed abroad, or their dependants, to travel to the UK just to claim the payment or to make a claim from abroad. If we have evidence that the system is being used in that way, however, we want the power in regulations in order to deal with it. We do not anticipate any difficulties in that respect, but we feel that it is entirely appropriate that we take such an enabling power in the Bill.

Michael Clapham: Such cases crop up from time to time. You may have come across cases in your constituency, Mr. Taylor, given that it is a mining constituency, in which people have moved abroad and then been diagnosed with a disease for which compensation is available, such as under the chronic obstructive pulmonary disease scheme. The Minister might be aware that under that scheme there is a procedure whereby medical reports from abroad are the accepted basis for determining a diagnosis. Presumably, she would work in a similar way, because it is no use inventing the wheel twice. If the procedure under the COPD scheme is working well, maybe the Department should look at it as a way in which to deal with cases from abroad in relation to payments under the scheme that we are discussing here.

Anne McGuire: I need to clarify for my hon. Friend that industrial injuries benefits still have a work component, as I think that he recognises. If a person has contracted mesothelioma through another route, they are not entitled to the industrial injuries benefit that he mentioned earlier. Certainly, however, I shall reflect on the point that he made about not reinventing the wheel, because not doing so is a valuable rule to follow.

Paul Rowen: The Minister and amendment No. 148, which I have tabled, seek to do very much the same thing in this very restricted area. I would like to quote from an evidence sitting in which I asked Hilary Reynolds about a particularly important point. My question was:
“However, if someone was working on the docks in Gibraltar, or any British naval dockyard not in the United Kingdom, would that affect payment?”
Her answer was:
“The intention of the power is to ensure that people who have a connection with the UK, either through their employment or because they live near an asbestos plant, are covered, and to avoid the equivalent of benefit tourists—if I am allowed to use that phrase. They are people with no connection to the UK who travel here to gain a lump sum. People working in the dockyards in Gibraltar would be covered because it is a UK establishment.”——[Official Report, Child Maintenance and Other Payments Public Bill Committee, 17 July 2007; c. 39, Q99.]

Tim Boswell: That was my understanding of the position, and I hoped that it was definitive, but I thought that the Minister said this morning that it would be confined to the contraction of mesothelioma arising in the UK. Notwithstanding the fact that the naval dockyard is a British establishment, it is not within the UK, so I am slightly concerned about the point that the hon. Gentleman is rightly raising.

Paul Rowen: I agree. I went on to ask Hilary Reynolds: “Would that include Gibraltarians?” Her reply was:
“We might need to go into more detail later. It is people who have a connection with the UK. We are not trying to exclude citizens of particular countries.”——[Official Report, Child Maintenance and Other Payments Public Bill Committee, 17 July 2007; c. 39, Q100.]
Gibraltar is a dependent territory and people were working in a British naval dockyard. My amendment is not intended to prescribe conditions, but we are saying that a person employed by someone with a clear connection to the UK, such as someone working in the dockyards in Gibraltar or Malta who contracts mesothelioma as a result of that employment and cannot claim through their own country, should be able to access a compensation scheme. As Gibraltar is a dependent territory, it is clear that there is a direct connection to the UK.

Andrew Selous: This group of amendments is interesting and important. I have sympathy with the Government amendments, which I understand are intended to restrict lump sum payment tourism, if one can call it that, whereby people would try to come to this country to access the good scheme that is being set up.
There are three types of case about which I am not quite clear, and I shall ask the Minister to elaborate on them. First, there is the case of a British worker who spends their entire life working here in the UK, contracts mesothelioma from their employment and then retires to Spain. Will that person still be covered? I believe that that was the question that the hon. Member for Barnsley, West and Penistone asked.

Tim Boswell: May I refine my hon. Friend’s point? There might at least be the potential for a distinction between countries of the European Union and countries outwith it—I am thinking, for example, of the arrangements on retirement functions. We are all anxious that that distinction is not created in this matter.

Andrew Selous: I am grateful to my hon. Friend, who has great experience on such matters. At this point, I am perhaps beginning to have a bit more sympathy for the Minister than I should, because I know we are posing a complicated set of questions, but they are incredibly important. If she cannot give the details that we seek, will she assure us that she will write to all members of the Committee, so that we are clear about them?
Case one was the retired worker going to Spain or wherever. Case two is the worker in the British Crown dependency of Gibraltar or one of the sovereign base areas in Cyprus, for example, who has perhaps worked for the British armed forces for all their life. Case three is someone who worked, for example, for Rio Tinto in Zambia. As I understand it, under amendment No. 148 Rio Tinto would be considered as a company based in the UK, but I do not believe that the intention behind the Bill is that a Zambian working for a subsidiary of Rio Tinto in Zambia, under a Zambian contract of employment and Zambian law, should be able to come and claim a lump sum payment here in the UK. With respect to the hon. Member for Rochdale, that would probably be the result of that amendment.
Considering those three generic cases and the possible refinement for the EU that my hon. Friend the Member for Daventry mentioned in relation to case one, I should be grateful if the Minister could give the Committee some clarification.

Tim Boswell: We have had a good rattle on some complicated and sensitive issues, because I am quite sure that the Committee is at one in not wanting to exclude anybody who has a material connection with the United Kingdom.
Most of the points have already been made, but I would at least like to get the Minister’s assurance that she will reflect on the situation where there is a Crown employment connection but that connection has not necessarily been established in a British colony or a British territory. For example, at one stage we had, controversially, a British naval dockyard at Simonstown in South Africa, which was not, I think, a British territory, although it was part of the Commonwealth at that time. We need to be absolutely sure that we are covering everybody who has, in effect, been working in the service of this country, wherever that may have been, or indeed their dependants.
That prompts my second question. There is a reference in the helpful explanatory notes on secondary legislation, which have been circulated to members of the Committee, to the fact that a person with mesothelioma would not be entitled to a lump sum payment, if they were eligible for a payment for the same disease under the MOD’s war pension scheme or the armed forces compensation scheme. I suspect that few of us would wish to sit an exam on the details of those schemes, but would the Minister at least undertake to go away and check them?
I understand from the way in which the clause is written that the Minister’s new scheme, which we have all welcomed, is designed to pick up people who are otherwise left out. In a case of secondary contamination—for instance, the contamination of the wife or partner of a service person who might be compensated under the war pension scheme—they would be eligible under this scheme and not under the MOD scheme. Given that we are anxious to avoid any possible omissions, will the Minister at least undertake to ensure that anyone who is a dependant is not ruled out, perhaps by the terms of the MOD scheme, from claiming because they are not the person who was directly employed in Crown service?

Anne McGuire: As hon. Members have graciously recognised, there has been a series of detailed questions, some of which I will be able to give a response to this morning; others I will answer by writing to all members of the Committee.
In some areas, I will be able to give some comfort to hon. Members. I reiterate that the principal aim of the new scheme is to make lump sum payments quickly to those people who are not currently eligible, as the hon. Member for Daventry has rightly recognised, for help from the Government. We aim to fund this new scheme by recovering lump sump payments from any later award of civil damages. That means that people who have been exposed to asbestos, or who currently cannot claim compensation under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, would receive compensation.
We have limited funds for the scheme, as I think all colleagues have recognised, and we think it right that those funds should be used to pay compensation to people with links to the UK who have contracted mesothelioma. We have obviously taken the power in the Bill to do that.
Like all hon. Members, I have every sympathy for anyone who has contracted mesothelioma, which is a terrible condition, while working abroad—they may even have been working for a UK-based company—but, frankly, we simply cannot afford to pay people from abroad compensation from this scheme. I know that there is a slight refinement in the amendment, as the hon. Gentleman indicated in his contribution to the debate, but I do not think that the UK taxpayer should be expected to pick up that bill, albeit that we have every sympathy for the individual concerned. If a person is exposed to asbestos abroad due to the negligence of their employer, then, within the parameters of their own country or of the country in which they are resident, they need to examine whether there are compensation schemes.
May I deal with some of the specific issues? The hon. Member for Daventry asked whether, if the wife of a member of service personnel or other MOD personnel were not entitled to compensation under the MOD scheme, they would be able to claim for compensation under this scheme. I say to the hon. Gentleman and other colleagues that the test for exclusion will be the entitlement to the MOD scheme.
On the issue of civilians who work abroad, albeit in what might previously have been described as British dependencies, foreign civilians who work for UK companies will not be entitled to compensation unless they have some other UK link such as residence. The issue of people who retire abroad was mentioned by two or three hon. Members. If the exposure was in the UK, and those people retired abroad, they would be entitled to payment under the scheme. The link is the UK. We do not believe that the existence of the scheme will encourage people to travel to the UK, and that point was affirmed by the hon. Member for South-West Bedfordshire.
The hon. Member for Rochdale asked some very specific questions about MOD staff working abroad in Gibraltar, and somebody else mentioned Malta. The situation is complicated by bases that were not entirely part of the UK, such as Simonstown. We shall make a payment from the new mesothelioma scheme in cases where the MOD will not pay, because exposure did not occur in service. I hope that that clarifies the position. I was asked whether people can claim if they are diagnosed with mesothelioma caused during service in the armed forces. If the condition was caused during service before 6 April 2005, ex-service personnel can claim under the war pensions scheme, to which no time limits apply. If the condition was caused during service on or after that date, a claim can be made by both serving and ex-service personnel under the armed forces compensation scheme. I hope that that covers most of the issues of detail that hon. Members have highlighted. I urge the hon. Member for Rochdale not to press his amendment. Although he clarified the thinking behind it, it is of much wider scope than the points that he mentioned.

Paul Rowen: The Minister is right; the particular circumstances that I was concerned about are very specific. I do not want any extension of the provisions to British companies operating abroad—clearly, none of us want that—so I shall not press my amendment.

Amendment agreed to.

Paul Rowen: I beg to move amendment No. 147, in clause 42, page 37, line 13, leave out from ‘that’ to end of line 14 and insert ‘dependant’.
The amendment probes the conditions for the entitlement of dependent persons, and it draws attention to certain family situations. The Minister may wish to explain the working of entitlement but, as far as I can make out, subsection 2(a) restricts the payment of a sum under subsection (3) to dependants in cases in which a payment has not yet been made to the individual who is ill.
What would happen if a payment was made to a sick person or to a dependant, but later an application was made by another dependant, who would not be entitled to even a small payment under the Bill? The provision is concerned only with the initial claim and with a payment split between the sufferer and their dependants. If another dependant made a claim, they would not be entitled to payment, so will the Minister explain how the arrangements for the sick person and their dependants will operate? Furthermore, if a dependant receives a part-payment, and is shown to be suffering from mesothelioma because of previous occupational hazards, including secondary contact such as washing overalls, will they be entitled to a separate payment under subsection (1) if they have already received a dependant’s payment? People are not eligible for payment if they are eligible for compensation after making a civil claim. That is fair, but what happens if a civil claim takes too long to process, or if someone appeals against the decision? As we know, people can die very quickly from mesothelioma. Can we introduce a system whereby they receive a payment under the Bill while they await the outcome of civil litigation?

Andrew Selous: I have rather more sympathy for amendment No. 147 than for amendment No. 148, although I accept what the hon. Member for Rochdale was aiming to achieve. Amendment No. 147 is sensible, because it appears from clause 42(2)(a) that a dependant could lose out if another dependant, the deceased, or the deceased’s personal representative has received a payment. I hope that the Minister can clarify the position.

Anne McGuire: I encourage the hon. Gentleman to rephrase his last sentence, as I am not sure that I understand the point that he is making.

Andrew Selous: I may have misread subsection (2)(a), but I think that the hon. Member for Rochdale is on to something. As he and I understand subsection (2)(a), a dependant could lose out if another dependant, the deceased or the deceased’s personal representative has been paid. They would not receive payment, and I do not believe that that is the intention of this part of the Bill. On page 55 of the explanatory notes, there is a list of dependants who can claim, which the Minister read out in a previous debate. It gives categories of dependants, including children under 16, children under 21, and children of any age. It makes it clear that the provision applies to more than one dependant. However, a literal interpretation of subsection (2)(a) suggests that other dependants could lose out.
 Mr. Weir rose—

David Taylor: Order. Nesting interventions are not yet allowed in Parliament.

Andrew Selous: I have finished my intervention.

Anne McGuire: My apologies, Mr. Taylor—I caused that difficulty. If the hon. Member for Angus wants to intervene on me, I would be delighted to give way to him.

Michael Weir: I apologise for the confusion. I am slightly puzzled, because the purpose of subsection (2)(a) is to prevent double payment, if somebody has already received compensation for their condition. I am confused about the purpose of the amendment, and I hope that it can be clarified.

Anne McGuire: In other circumstances, I would invite the hon. Gentleman to cross the Floor, because he has fully understood the intention behind this part of the Bill. I thank the hon. Member for Rochdale for raising the issue in his amendment, but I want to make it very clear that it is our intention to pay one lump-sum payment, and to do so quickly. It is not the intention to make more than one lump-sum payment to a family, as we would be compensating the same family more than once. As the hon. Member for Angus said, it would duplicate compensation. I said earlier that the scheme is self-financing. If we make more than one payment to families, maintaining the scheme will be difficult financially.

Michael Clapham: If I interpret the question correctly, the situation is as follows: if a person exposed to asbestos in the workplace brought it home on his clothes and developed a disease, he would receive a payment, and if a person in his household later developed a disease, they would be able to claim a payment, because it would be a separate case. Is that how the Minister sees it?

Anne McGuire: That is exactly what I was going to say. We are in danger of arguing about how many angels can dance on the head of this particular pin. Obviously, there is a relationship between claimants and dependants, but as my hon. Friend said, a dependant could also make an independent claim in their own right for contracting mesothelioma. They would therefore have the right to pursue compensation over and above their right as a dependant.
I am still at something of a loss to understand how the hon. Member for South-West Bedfordshire interprets this clause. He misinterprets our intention, which is primarily to pay compensation quickly to families, individuals and their dependants, recognising, as my hon. Friend said, that there can be more than one independent claim in a family. Our wording is clear enough to deal with the issue, and I hope that the hon. Member for Rochdale will withdraw his amendment.

Paul Rowen: I am grateful for the Minister’s reassurance. She has provided the clarification that I was seeking, and confirmed that someone with a separate incidence of mesothelioma will not be debarred if they have already received payment as a dependant. That is helpful, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 144, in clause 42, page 37, line 18, leave out from ‘that’ to end of line 19 and insert
‘such requirement, if any, as may be prescribed by regulations as to the deceased’s connection with the United Kingdom is satisfied’.—[Mrs. McGuire.]

Clause 42, as amended, ordered to stand part of the Bill.

Clauses 43 and 44 ordered to stand part of the Bill.

Clause 45

Appeal to appeal tribunal

Question proposed, That the clause stand part of the Bill.

Michael Clapham: May I take this opportunity to ask the Minister whether the appeal procedure to which the clause refers will be based on the medical appeal tribunal? Will the medical appeal tribunal be called on to intervene if, for example, the diagnosis is an issue? Will it deal with questions of exposure, or is it intended to introduce a new tribunal procedure? As I see it, the medical appeal tribunal procedure is adequate to deal with such cases.

Anne McGuire: The Secretary of State for Justice and the Lord Chancellor are responsible for regulations relating to appeal procedures under clause 45(4)(a) and (b). The rules will be consistent with the existing procedures for social security and child support appeals to the tribunal or a commissioner. The tribunal will comprise appropriately qualified people, including a medical member. I am not quite sure if that answers the specifics of the question. If it does not, I will come back to the hon. Gentleman and others with a further clarification.
Any appeal made under the clause must be referred to an appeal tribunal, unless it is to be treated as a request for a reconsideration of the decision, which would be dealt with by the Secretary of State. The appeal tribunal will be able to substitute a new determination for the original determination made by the Secretary of State. Regulations will be set out as to how the appeal is to be made and how long a person will have in which to make such an appeal. The clause is needed to provide a safeguard for people who feel that a decision made on their claim for a lump sum payment is wrong.

Question put and agreed to.

Clause 45 ordered to stand part of the Bill.

Clause 46 ordered to stand part of the Bill.

Clause 47

Minors and people who lack capacity

Question proposed, That the clause stand part of the Bill.

Tim Boswell: One of the distressing by-products of having taken a substantial part in discussing the Mental Capacity Act 2005 is that there is an almost irresistible temptation to refer to it in other Committees. I do so briefly this morning and, I hope, helpfully—I think that the Government’s intentions are entirely clear—because I would like to flag up one or two points arising from my experience of that very sensible legislation.
First, I would like to draw a distinction, although it appears that the cases are similar, between those identified in subsection (1). A person under 18 will never have had the capacity of disposing of substantial assets of the order of the £6,000 lump sum or, even as a dependant, a proportion of that, which the Minister has already indicated, whereas a person who lacks mental capacity may have been able to make that kind of disposition in the past.
I mention this matter to the Minister because there were some cases during the passage of the 2005 Act in which it was clear that the Department had a somewhat different set of criteria from those that were applied by the now Ministry of Justice in relation to mental capacity. For example, there were rather parallel systems in operation in relation to appointed persons who could receive a benefit on behalf of somebody.
However, I remind the Minister that the 2005 Act does not provide a definitive test for all matters at all times and it may vary according to the circumstances. The difficulties of this are, first, trying to determine whether the financial matters are sufficiently large for the person not to have mental capacity, and, secondly, whether at the particular time it is relevant, because a person can recover their mental capacity whatever their physical condition. That, therefore, produces some difficulty about the test in paragraph (b), because we need to know that the person does not have mental capacity in relation to financial matters. Had I had the time and inclination, I would have tabled a probing amendment with the wording, “financial matters relevant to the lump sum”. It would also have suggested that we should be aware of the fact that the person could recover their capacity subsequently.
That leads me on to the second half of my argument—I am leading up to a particular point that I want the Minister at least to entertain in relation to the appointment of trustees. I mentioned appointed persons under the social security legislation and how they differ from the various persons who can be appointed under the 2005 Act. The proposal in this case is that the Secretary of State will appoint such trustees as are clearly appropriate. I have no doubt whatever that that could be done and would normally work perfectly well. The Secretary of State will also be able to specify trusts that are appropriate to the case. Those who are more familiar than I am with compensation matters will know that that kind of thing happens all the time in the private sector—for example, in relation to road accident damages. However, within the mental capacity legislation, there is the opportunity for a person, while they have capacity, to appoint someone as their attorney under a lasting power of attorney.
The point that mainly concerns me is that if that person is competent—there is no reason to think that they would not be, although they might not be because the sum could be bigger than any that they have ever had to handle—there is no reason to think that they should not be the natural person to be the trustee for the Department for handling that lump sum. They may be handling other assets that the person has available under the terms of their lasting power of attorney. They could receive and handle those perfectly well. I shall put it another way. If a set of trustees handled other assets, represented by the attorney holder, and a different set handled these assets, that might not lead to the best use of the assets overall and might give rise to friction.
Those possibilities exist within the mental capacity legislation. We do not need a definitive answer on that from the Minister today, but I hope that she will have regard to what is done in relation to that and try, as far as possible, to marry the two systems, using the people who may already be competently in place and who could handle perfectly well this other, somewhat sad duty of receiving and dealing with a lump sum on behalf of the person who has lost capacity.

Anne McGuire: I thank the hon. Gentleman for his thoughtful and helpful comments. The Bill’s provisions mirror the 1979 Act, which predated the Mental Capacity Act 2005. He made some interesting points, including those relating to whether a person recovers capacity, the appointment of trustees and the power of attorney—that, as I understand it, is something that a person sorts out before they have lost capacity.
The clause is certainly designed to ensure that someone who lacks capacity is protected. It also safeguards the rights of other beneficiaries by allowing the Secretary of State to appoint trustees and make a payment to them to hold for the benefit of the beneficiary. The hon. Gentleman made some interesting and detailed points and, although I do not wish to pursue them now, we will certainly reflect on whether there are further implications for the legislation as it stands.

Tim Boswell: That is an entirely satisfactory reply and meets the point very well.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Clause 49

Amendment of Social Security (Recovery of Benefits) Act 1997

Question proposed, That the clause stand part of the Bill.

David Taylor: With this it will be convenient to take new clause 21—Provision of information by employers—
‘After subsection 23(5) of the Social Security (Recovery of Benefits) Act 1997 (c.27) insert—
“(5A) Employers, corporate bodies or individuals whose activities have resulted in the exposure of people to asbestos fibres, shall be under a duty to take all reasonable steps to provide timely details of their insurers.
(5B) Such insurers shall have a duty to respond to claims enquiries in a timely manner. The Secretary of State shall make provision by regulation to levy charges where, in his opinion, there has been unreasonable delay in the provision of such information.”.’

Andrew Selous: Clause 49 is extremely important and deals with how the money will be provided for the lump sum payments that the Department will pay out up front. If Committee members read clause 49 in full, they will see that lump sum payments that are paid out promptly—within six weeks, we hope, of diagnosis—are to be recovered from subsequent compensation payments made either by solvent employers or by insurers, should those employers choose to claim against their insurance policies or should the employer have become insolvent. It is an extremely important aspect of the Bill.
I shall refer briefly to remarks that the Minister made in an earlier debate. I think she said words along the lines of, “We do not have enough money to pay everyone.” I may have misquoted her slightly, but it was something similar.

Anne McGuire: To clarify that for the hon. Gentleman, the remarks were about opening up the compensation scheme to people who lived and were resident in other countries. If that was not clear, I hope that I have made it clear now.

Andrew Selous: I thank the Minister for that clarification; I had slightly misunderstood her, so I apologise.
It is none the less important that we understand the mechanism that the Government use—absolutely rightly—in the clause. It involves using the compensation payments from solvent employers and their insurers, or from the insurers of insolvent employers, to compensate the Department—quite rightly—for the money that it pays out quickly up front, and about which we are all pleased.
New clause 21 is part of my attempts to be helpful, and I hope that the Minister will recognise its spirit and intention. It would have two benefits. It would benefit the sufferers of mesothelioma, because when an amount greater than the lump sum payment is payable by the employer or by their insurer, the new clause would speed up the compensation payment process. If there were any excess over and above the lump sum, it would get it to the sufferer more quickly. At the same time, it would come to the aid of the poor, beleaguered public purse—the finances of the Department for which the Minister is responsible—because it deals with the mechanism whereby the Department gets back the money for paying out the lump sum.
In a news release from the Department on 20 July 2006, no less a person than the former Secretary of State said:
“We are also continuing the essential work that is ongoing to speed up the full compensation payments due to many sufferers and their families through the civil claims process”.
Those words were very welcome and important, but it is not clear whether the Bill includes anything to aid that process. The new clause would give the Secretary of State the reserve power, when in his or her opinion employers or insurers were dragging their feet and not responding, to make a charge on them to ensure that they responded in a timely manner to inquiries.
The new clause was tabled in part because of my constituency experience, which I am sure is mirrored by that of other Committee members who have found employers and insurers incredibly slow and unresponsive when dealing with such claims, whether they are for mesothelioma or for similar issues. It gives me no pleasure to say that, because my background is in insurance. Before I came into the House, I was a chartered insurer, and I am generally extremely proud of the British insurance industry. It makes a major contribution to our balance of payments and the public purse, and it does a tremendous amount of good throughout the world. I spoke to the Association of British Insurers before tabling the new clause, and I know that it, too, seeks to guard the good reputation of the insurance industry.
I hope that the Minister will look sympathetically at the new clause. My experience as a constituency MP is that it is almost impossible to get movement on some cases. We know that the former Secretary of State was exercised about such matters. The new clause gives the Department a stick with which to prod or cajole employers or insurers as and when necessary.

Michael Clapham: I raise two points on clause 49, in particular in relation to subsections (3)(a) and (3)(b) of proposed new section 1A. Some of the responses that I received from the Association of Personal Injury Lawyers relate to the recouping under subsection (3)(a) of compensation paid to dependants of the deceased. The association points out a conflict with the Fatal Accidents Act 1976, saying that when assessing damages in respect of a person’s death under that Act certain other benefits are disregarded. It feels that in cases of mesothelioma we should also disregard the recouping of payments made to dependants.
My second point is about proposed new subsection (3)(b), under which recovery can be made from the injured person’s compensation. It can result in the entire payment being recouped. In a previous life, I heard of cases in which recoupment resulted in the special damage element being completely taken, but never has it taken any of the general damage element. It is possible under proposed new paragraph (b) that money could be recouped from general damages—payment for pain and suffering. Again, there is a conflict with the civil law.
There is a chance that we may give impetus to challenges in the civil courts on the basis that some schemes, particularly this one, allow for general damages to be recouped. Until now, they have been sacrosanct. Will the Minister reflect on that? We do not want to create a situation in which general damages that are normally ring-fenced in civil litigation are likely to be taken. That would be the thin end of the wedge, and it is likely to be challenged. Reflection is needed.
One other point relates to the amendments that the Government are thinking of making to the Social Security (Recovery of Benefits) Act 1977 in relation to proposed new subsection (3)(e). They say that they want to be able to review certificates of lump sum payments in a similar way to certificates for recoverable benefits. They also say that they want to recover lump sums from compensation when a claimant receives any of several prescribed payments. One of those is payments made under the 1974 coal workers’ pneumoconiosis scheme. I am aware that there will be circumstances in which a person may have two claims. A person who can claim under the 1974 scheme may be able to claim also under the 1979 scheme. That has been the situation since the demise of British Coal in 2004.
A person who makes a claim under the 1974 scheme before making another under the 1979 scheme is precluded from using the 1979 Act on the grounds of being in receipt of compensation. One of the provisions of the 1979 Act is that a person who has received compensation cannot claim under that Act. There is a procedure to follow in making both claims: a pneumoconiotic must claim under the 1979 Act before claiming under the 1974 scheme, to get both payments. 
My concern is about the circumstances in which payments will be reclaimed under the 1974 scheme. For example, I can envisage that a dependant of a deceased person who did not make a claim during his life might make a claim under the 1974 scheme, and at the same time have a claim under the 1979 scheme—the new 1979 scheme, which we are talking about. That would occur because mesothelioma is a cancer caused by asbestos and asbestosis is a form of pneumoconiosis. It is defined under the 1974 scheme. A miner, for example, can claim under the 1974 scheme if he has developed an asbestos-induced disease; at the same time, as I have said, since 2004 the same miner has been able to claim under the more recent scheme.
I can see that a situation might arise in which a dependant would make both possible claims. Is it in such a circumstance that the Minister envisages recouping the 1974 payment, rather than in a living case? I should have thought that the matter moves outside the relevant scope when we relate the Act in question to a living case. She will know of moves that are, I understand, afoot to review the whole of the pneumoconiosis scheme. I do not know whether that will happen sooner or later, but will she clarify the circumstances in which we shall recoup 1974 pneumoconiosis scheme payments?

Tim Boswell: I was going to echo the hon. Gentleman’s points in connection with representations submitted by APIL. The main guiding principle should be that whatever is contemplated, it should not strike differentially between the two different arrangements; it should be on the same basis as the civil compensation scheme, both in relation to the treatment of dependants and in relation to any recovery, or non-recovery, of general damages. I think that that is a good principle, so I shall not go on about it.
I should like to say a word or two in support of the new clause tabled by my hon. Friend the Member for South-West Bedfordshire about information. It is clearly important, and, when I looked into the matter in detail, I found that a number of employers clearly did not have particularly good employment records, and several insurers, no doubt for their own reasons—it may or may not have been intentional—did not have very good records of coverage either.
That can also affect what might, in shorthand, be called compliant employers, or compliant employer liability insurers. One of my worries when the Government moved, in effect, to say that they would reverse the court judgment and make any insurer liable for its part in the scheme, was that if only one employer, and possibly only one employer liability insurer, could be identified—even if that employer had employed the person who contracted the disease for only a week in a career of 40 years, and even if the illness was not directly attributable to that week—it could in principle be liable for the whole quantum of compensation.
I am not clear about what stage that proposal is at now, but it would be very inequitable if that state of affairs came about, and no one in the Committee wants to create a situation of inequity. It is clearly right that all the insurers that are involved over a person’s career should be engaged and should take their proportionate share of the liability, if that is possible—or at least broadly so. Perhaps the Minister can respond to my hon. Friend’s concerns, which are set out well in his new clause, and give us a slightly more general appreciation of the problem, which has troubled me for a number of years.

Andrew Selous: As always, my hon. Friend is absolutely right. There is a large issue in respect of incomplete or poor record keeping and an issue about someone who has a work history over many years, with perhaps one employer or one insurer being asked to take an unfair burden in contrast with their share of responsibility.
New clause 21 does not really deal with either of those issues; it would give the Department—the Secretary of State—a reserve power where it is clear who the employer was. I have a constituency case where a gentleman worked for 35 years for one employer, knee-deep in asbestos, and he cannot get past his employer to get on to his insurer. That offends me hugely and it offends a profession that I was proud to be part of before I came into the House.

David Taylor: Order. That is a rather long intervention.

Andrew Selous: Thank you, Mr. Taylor. I take your point. I hope that I have clarified things.

Tim Boswell: My hon. Friend’s clarification is useful. There are both specific and, if I may say so in the terms of earlier remarks, general issues of concern about ensuring that the burdens fall where they properly should and that delinquent employers and/or insurers—they may not be all of them or any of them—should be identified wherever possible and encouraged to pay their proper share of the burden. Perhaps the Minister will enlighten us on how she is getting on with that.

Anne McGuire: I thank hon. Members for a complicated and detailed discussion. On pulling out the detail, we will hopefully have a greater understanding of the Bill and where we are going with it.
I thank the hon. Member for South-West Bedfordshire, whose new clause was tabled in a spirit of opening up the dialogue about how we speed up compensation and pursue claims through the normal compensation process in the courts, if that is necessary. I think that all of us would agree that civil compensation can be a pretty long process, because there are so many arguments to consider. The key thing in terms of the process is to get the decision right.
We are trying to streamline the process, especially for those suffering with mesothelioma. The new scheme is, as I have said on previous occasions this morning, designed to get some funds quickly at the point of diagnosis of mesothelioma, or as near to it as possible. In relation to the civil claims for compensation—the hon. Gentleman highlighted this—the civil procedure rules, the practice directions and the pre-action protocols prescribe the time scales within which actions must be carried out, so there is already a process in place. The court can currently apply sanctions where those procedures are not complied with. It would not be appropriate for the Secretary of State to levy charges in these circumstances. I appreciate that the hon. Gentleman has tabled the new clause in the spirit of trying to encourage greater speediness in dealing with relevant cases, but it would not be appropriate to levy charges.
Both insurers and personal injury lawyers have been helpful in looking at ways in which we can speed up some of the processes, particularly in relation to mesothelioma. I fully understand that there is frustration when cases seem to take for ever, but although the hon. Gentleman has tabled his new clause in the spirit of being helpful, I am not sure that that would have the desired result and I urge him to ask leave to withdraw it.
My hon. Friend asked about the recovery of payments under the 1979 Act and the new mesothelioma scheme. As he recognises, the lump sum payments are made in lieu of compensation. We want the compensators to be able to deduct the amount of the lump sum payment that they are required to repay to the Department for Work and Pensions from any part of the compensation award, including general damages, which are highlighted specifically for pain and suffering.
If we attach the lump sum payment to a particular head of damage, the sufferers or their dependants could be doubly compensated and, as we made clear earlier and has been accepted by all sides, we do not want double compensation to be possible. There are no plans for recoverable benefits to be recovered from the general heads of damages.
My hon. Friend asked also about payments under the 1979 Act and the new mesothelioma scheme being paid to dependants, and whether they would be subject to compensation recovery. Payments made directly to dependants will be subject to compensation recovery from awards made to them under the Fatal Accidents Act 1976. Again, there are no plans for recoverable benefits paid to the person with mesothelioma to be recovered from the dependant or from the compensation awarded to the dependant under that Act. I hope that I have addressed his concern.

Mark Harper: Given that we are looking at several interactions, may I take the Minister back to her remarks about the armed forces compensation scheme and war pensions? She mentioned that, under the war pensions scheme, there was no time limit on claims. Under the armed forces compensation scheme, there is, of course, a five-year time limit on claims, although there is provision for dealing with late onset diseases. Will she confirm that mesothelioma would be captured under that scheme and will she ensure that it would not fall foul of the five-year time limit for claims?

Anne McGuire: I shall be pleased to come back to the hon. Gentleman with confirmation or otherwise of that specific point, which was slightly to the side of the discussion.
My hon. Friend also highlighted the coal workers pneumoconiosis scheme payments in respect of the compensation recovery scheme. I hope that the Committee will forgive me if I go into some detail on that. It is our intention only to recover the 1979 Act payments on new scheme payments from subsequent awards made to a person under the coal workers’ pneumoconiosis scheme. That is to stop a person being compensated twice for the same condition: from the Department for Work and Pensions under the 1970s legislation or the new scheme and from the Department for Business, Enterprise and Reform—previously the Department of Trade and Industry—under the CWPS. We do not intend to recover any social security benefits that a person may receive from the CWPS awards.
As my hon. Friend might be aware, earlier this year BER received a challenge from claimants’ representatives to the action of denying claims to the CWPS when it was understood that a compensation payment for pneumoconiosis had already been made under the 1979 Act. BER’s view was that paying under both schemes would effectively be compensating claimants doubly for the same condition. Later this year, following legal advice, it was decided that it must pay compensation to the CWPS in such cases. As my hon. Friend is well aware, the 1979 Act was, in fact, never intended for miners as they had their own compensation scheme on which that Act was based. They only became entitled to a claim under the legislation when the British Coal Corporation was dissolved in March 2004. I hope that I have dealt with some of the issues raised. I advise the Committee that, since June when BER started to pay out the claims, it has only received a couple of dozen claims to CWPS when payment has already been made under the 1979 Act.
As for the broader application in respect of general damages, I shall carefully reflect on what my hon. Friend said. I do not believe that our proposals for lump sums have set any form of precedent. They are intended only to apply to lump sum payments, but I shall read carefully what he has highlighted and, if need be, we can come back to such matters.
Clause 49 amends the Social Security (Recovery of Benefits) Act 1997 to provide regulation-making powers to the Secretary of State for the recovery of lump sum payments. Money generated through this compensation recovery process will be used to fund the new mesothelioma scheme so that it is self-funding. Lump sum payments under the new scheme will initially be based on what the level of recoveries will allow, but the payments will increase in subsequent years as more recoveries are made. This means that the scheme will be self-funding.
The principles of the current scheme are to be adopted for the recovery of lump sum payments and the amount of the lump sum is to be recovered even if it reduces the civil compensation award to nil. This does not disadvantage the sufferer or their family in any way as the lump sum payment is paid in lieu of any civil compensation. We are not taking money away that people would otherwise have. Regulations falling out of this clause may also allow for a lump sum payment made before the scheme is introduced to be recovered from civil compensation awards made after it is introduced. I ask the hon. Member for South-West Bedfordshire not to press his new clause to a Division. Although he was trying to be helpful, there are enough safeguards in the current system to deal with the issue that he highlighted.

Andrew Selous: I am grateful to the Minister for recognising my reason for tabling the new clause. I will not press it to a vote. I note her comments about the court being able to levy charges, which she thought was sufficient and there was no need for the Secretary of State to have a power. I hope that it will not try her patience if I ask her to write to me or to the Committee—or perhaps to respond later today—with some indication of the frequency with which the courts use that power. It is all very well having a reserve power, but it needs to be something that insurers or employers have reason to fear,

Anne McGuire: I try to be helpful to the Committee at all times, but it would be beyond our resources between now and our next sitting this afternoon to find out all the instances where charges have been levied by a court through cases under the English jurisdiction, notwithstanding the fact that we would not have time to look at the Scottish situation.

Andrew Selous: I hear what the Minister says. Without putting her officials to too much work, would it be possible to provide any information that the Department has on the frequency with which charges are levied? I am not as convinced as I would have liked to be that she shares my view about the scale of the problem and the frustration of our constituents when some of these issues drag on so slowly. I do not intend to press this new clause, given that she believes that the existing powers are adequate. If they are adequate, it would be reasonable to have some idea of the frequency of their use.

Question put and agreed to.

Clause 49 ordered to stand part of the Bill.

Clause 50

Regulations: general

Michael Weir: I beg to move amendment No. 95, in clause 50, page 41, line 45, at end add—
‘(7) The Secretary of State must consult with all organisations with a relevant material interest prior to making regulations under this Act.’.
This is basically a probing amendment. I recognise that it is not perfect, not least because it does not define “a relevant material interest”. I am sure that the Minister would have made that point, so I got there first.
One of the problems with the CSA has always been the amount of regulation, and their difficulty and complexity. The many organisations throughout all the jurisdictions in the UK have now built up a great deal of expertise in dealing with those regulations and the problems that have arisen under them.
In drawing up regulations for CMEC under the new Act, it would be valuable to consult such organisations so that we might avoid some of the pitfalls that bedevilled the CSA. I am not suggesting that the consultation continue for ever, and I appreciate that we must come to a decision and introduce regulations, but I want to tease out from the Minister what consultation is being undertaken and who is being consulted. I also want him to understand that it is useful to consult those who have worked at the coal face over many years.

James Plaskitt: I thank the hon. Gentleman for moving his amendment. Let me say, however, that this has been one of the most consulted-on Bills of recent years. I accept what he says about the need to consult. He asked who has been consulted. Before the Bill went through pre-legislative scrutiny in the Select Committee on Work and Pensions, a list was published of all the organisations that the Department had engaged in the consultation process, and, before that, those consulted by David Henshaw’s inquiry, which also consulted extensively.
Given the Bill’s history and the route that we have taken to reach the proposals before us, I think that I can reassure the hon. Gentleman that there has been extensive consultation, and that consultation is by no means finished. It will not be endless and for ever, as he rightly said, but as CMEC comes into being and takes its early decisions, it will still consult major stakeholders, such as One Parent Families, Families Need Fathers, Resolution and the Child Poverty Action Group. Many other organisations have, however, been heavily engaged with us in the consultation process.
The hon. Gentleman is therefore right to stress the importance of consultation. I can assure him not only that there has been a lot of it, but that it is ongoing. However, there is no case for including a requirement to consult in the Bill, and I hope that he will agree to withdraw the amendment.

Michael Weir: My point related to ongoing consultations about the regulations, rather than the Bill itself, but I recognise what the Minister says and I do not wish to push the matter to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 ordered to stand part of the Bill.

Clauses 51 and 52 ordered to stand part of the Bill.

Schedule 7

Minor and Consequential amendments

Paul Rowen: I beg to move amendment No. 136, in schedule 7, page 69, line 16, at end insert—
‘(1A) In section 4 (child support maintenance), in subsection (10)(a), after “written maintenance agreement” insert “or a registered minute of agreement”’.

David Taylor: With this it will be convenient to discuss the following amendments: No. 137, in schedule 7, page 69, line 16, at end insert—
‘(1A) In that section, in subsection (10)(aa) (which refers to maintenance orders)—
(a) insert at beginning “a registered minute of agreement made after 5th April 1993 or”
(b) for “one year” substitute “48 months”’.
No. 138, in schedule 7, page 69, line 16, at end insert—
‘(1A) In section 7 (right of child in Scotland to apply for assessment), in subsection (10), after “written maintenance agreement” insert “or a registered minute of agreement”’.
No. 139, in schedule 7, page 69, line 19, at end insert—
‘(2A) In section 9 (agreements about maintenance), for subsection 1, substitute—
“(1) In this section—
“maintenance agreement” means any agreement for the making, or for securing the making, of periodical payments by way of maintenance, or in Scotland aliment, to or for the benefit of any child.
“registered minute of agreement” means any agreement containing provisions relating wholly or partly to maintenance, or in Scotland aliment, to or for the benefit of any child which has been registered for execution in the Books of Council and Session or the sheriff court books.”’.
No. 140, in schedule 7, page 69, line 19, at end insert—
‘(2A) In that section, in subsection (2), at end add “or a registered minute of agreement”’.
No. 141, in schedule 7, page 69, line 19, at end insert—
‘(2A) In that section, in subsection (3)—
(a) after “section 4(10)(a)” insert “and (aa)”
(b) after “written maintenance agreement” insert “or a registered minute of agreement.”’.
No. 142, in schedule 7, page 72, line 9, at end insert—
‘“registered minute of agreement” has the meaning given in section 9(1) of the Child Support Act 1991.’.

Paul Rowen: I want to refer in particular to the provisions dealing with the Child Support Act 1991. The purpose of the amendments to parts 1 and 2 of that Act is to ensure that it refers not only to written maintenance agreements but to a
“a registered minute of agreement”.
The amendments apply to the systems in England and Wales and in Scotland. A maintenance agreement may have gone before the courts, where an agreement may have been reached. By seeking to insert the words:
“a registered minute of agreement”,
we want to ensure that any decision made by the courts and then recorded in a minute of agreement is accepted as part of the arrangement for child maintenance.
I hope that the Minister will agree to the amendment. I will press it to a vote because I think that it is important for us to recognise and accept that the courts have a role. Where a decision is made in the courts and registered as a minute of agreement, it must have legal standing and take precedence over any of the commission’s other arrangements.

Michael Weir: We have returned to our earlier debate on my amendment relating to minutes of agreement. I do not intend to repeat all I said. However, it is important that minutes of agreement are recognised, and also that the one-year time scale will seriously undermine the take-up of such agreements. That is a shame because it is a way for many couples, although not all couples, to deal with their difficulties. I will support the amendment if it is pressed to a Division.

James Plaskitt: As hon. Members said, we are in danger of returning to previously visited ground. However, in view of the indication that the amendment might get pressed to a vote, I will respond in some detail. It is important that the matter is understood as there may still be some misapprehensions about it.
I am going to reiterate the points that I made on 9 October. The existing 12-month rule applies in cases where parents have a consent order or a registered minute of agreement made on or after 3 March 2003. It prevents parents from applying for a maintenance calculation for the first 12 months that a consent order or minute of agreement is in place. Variations to that agreement during its first 12 months can only be secured by a return to court. Once a year has expired, either parent may apply for a maintenance calculation, thus overturning the order for the minute.
The purpose of the amendment is to extend that 12-month period to 48 months. It is not the Government’s intention to disrupt arrangements agreed between parents which are working well. We want such agreements to continue and to benefit children for as long as possible.
The 12-month rule acts as a safety net for those parents and children whose arrangements are not working out. There will be occasions when things go wrong—an agreement breaks down, circumstances unexpectedly change or a parent decides that another type of arrangement would be more suitable for the children. The 12-month rule strikes a balance between giving time for agreed arrangements to bed in and work, and, when they do not work, providing a readily available route to the commission so that fair payment of maintenance can be established as soon as possible. The amendment would lock parents into agreements that are potentially no longer working for four years, and could leave children trapped in inadequate arrangements, often without the money that they need.

Michael Weir: Again, I do not want to go over old ground, but I am still not sure why the Minister keeps saying that people would be locked into agreements. A minute of agreement would normally have a clause for variation and, if it were not working and had clearly broken down, it could be enforced, as I explained. Once it is registered, it has the effect of a court decree. If one parent is not following the agreement, it can be enforced against them.

James Plaskitt: I fear that we are going over old ground. In one sense, the hon. Gentleman is right. If the problem has arisen with the minute of agreement, then either party can go back to the court. The question is about at what point we want to give parents the right of access to the commission. Proposals such as removing the 12-month rule potentially leave the minute of agreement in place indefinitely, thereby effectively blocking off access to the commission. The only means of resolving a breakdown in the agreement is by going back to the courts. That can be both a lengthy and time-consuming process. If parents choose to go down that route—only a minority choose do so—and it becomes problematic after the agreement is initially struck, they need to have the choice to come to the commission and have things arranged by that means. However, if the 12 months were in lieu, that choice is not open to them.

Paul Rowen: Does the Minister not accept that in circumstances in which there has been a lengthy battle to reach agreement on payment, 12 months is actually quite a short period? What the parent with care and the child need is some form of stability. That 12-month agreement does not give them long. There may have been a turbulent time in the courts up until that period, but an agreement has been made and a minute of agreement is in force, yet 12 months later everything is up in the air.

James Plaskitt: In one sense, the hon. Gentleman almost makes my argument. As we were saying, the agreement may have been struck in court at the initial point and it may endure. It may be a fine agreement for a lengthy period. However, circumstances may change or the agreement may break down. What offer do we make to people in those circumstances? Are those people restricted solely and entirely to having to go back to the courts to deal with any breakdown, or are we giving them the option, after a time, to come to the commission? We cannot give them the option of coming to the commission immediately because there would be no point going to court. There has to be a time for the agreements that have been reached in court to bed in. That is why the 12-month rule is, in effect, a compromise between the two positions.
The 12-month rule has another valid purpose. It encourages settlements that contain fair levels of child maintenance broadly consistent with the amount calculated under the statutory scheme. It therefore discourages the old style clean-break agreements that divide up property and assets between adults but leave children without regular payments of maintenance.
The performance of the Child Support Agency has been widely and often justifiably criticised. One of the unequivocal successes of its establishment is that from the outset it has steadily raised the profile of child maintenance and helped to embed a cultural norm that parents should continue to support their children whatever the circumstances of their relationship or in the event of a breakdown.
During our debate on 9 October, hon. Members implied that they felt that the 12-month rule was unfair because it prevented clean-break child maintenance arrangements. However, that is precisely why the 12-month rule is fair and why is should stay. It is recognised in the legal establishment, and increasingly in the wider society too, that while divorce or separation in adult relationships may be arranged around a clean break, there is no clean break for children.
The Government firmly believe that children have a right at the very least to adequate and ongoing financial support from their parents. Adult relationships may end, but the commitment to children does not.

Mark Harper: I shall be very brief because we have talked about this point at great length. Although a clean-break settlement with asset transfer takes place at a point in time, the transfer of assets leads to a flow of financial benefits, whether it is a reduction in expenses or some income coming in as a result. It is not the case to say that a clean-break settlement leaves children unprovided for. It may do, but, equally, it may not.

James Plaskitt: The problem is that the flow is not guaranteed. At the point of break, there may be an arrangement about the transfer of property. It is surely impossible to determine at that point unknown future circumstances that may significantly change the nature of that agreement Either of the parents taking on the property may move out of it; their circumstances may change in such a way that they have to dispose of it; or they may amass huge debts and sell the property to clear the debts, negating any flow of money to support the children. That is why we want to discourage clean-break agreements, because the one thing that needs to be done at the point of separation is to ensure that there is an ongoing flow of maintenance for the children. We cannot rely on circumstances that might pertain at the point of separation; we need to nail down an arrangement that will endure for as long as those children need it. We may be talking 10, 15 or potentially almost 20 years. That is why clean-break agreements do not do the business.

John Penrose: The Minister seems to be implying that a maintenance arrangement based on a proportion of someone’s income is somehow much more stable than some kind of asset transfer that will have financial yields. As we all know, it is entirely possible for people to lose their jobs or to be made redundant. There may be variations in someone’s earning capacity which are at least as risky—perhaps even more so—than the yield on a financial investment. It is not fair to say that one is risk-free and the other is not. In fact, both are risky, and it is at least arguable that assets yields are substantially less risky than career earnings.

James Plaskitt: The big difference is that if we begin at the point of separation with an agreement in place, and an understanding is arrived at on the part of both parents that an agreement needs to be in place, there is at least an acceptance in principle that there is an ongoing agreement to maintenance. That will need to be varied according to varying circumstances that pertain to the parents involved, which is why, under CMEC, we are introducing the annual review system. The hon. Gentleman is right to say that there are risks in a maintenance-based agreement, but the system under CMEC builds in a process for handling that risk and underlines the principle that a flow of maintenance needs to be in place. That is different from a clean-break agreement that makes no specific provision for maintenance. There is an assumption that maintenance will flow from the nature of the clean-break agreement, but it may not. That is an important point to bear in mind.
Clean-break maintenance arrangements contain a high level of risk for children, which is one reason why they do not attract the support of any of the major stakeholders who have been involved in the discussions and consultation about securing arrangements for CMEC. A child maintenance arrangement may need to cover a long stretch of time, covering the child’s upbringing. During that time, unforeseen circumstances may arise and clean-break arrangements, although made in good faith, may become irrelevant and no longer provide support for the children concerned.
The Government’s view is that there is a clear principle that children should, throughout their childhood, continue to enjoy a share of the income and prosperity of their parents. While we believe that clean-break arrangements present a particular problem, similar concerns apply to locking parents irrevocably into any type of agreed arrangement. Circumstances for one or both parents might change dramatically. A once highly paid non-resident parent may become ill or unemployed, or gain responsibility for another child and no longer be reasonably able to meet the maintenance commitments of an original agreement.
Let us consider the opposite case—for example, where a non-resident parent makes an agreement as an unsalaried student, but then after graduation joins the civil service fast stream, secures rapid promotion and attains a grade 5 post by the age of 30. It would not be right if his offspring were still supported by a maintenance level appropriate to that of a student.
There are lots of situations and circumstances in which, without any ill-will, an agreement made in good faith no longer provides for the needs of the children concerned. The purpose of the amendments appears to be to amend various provisions of the Child Support Act 1991 that relate to written maintenance agreements and maintenance orders.

It being One o’clock,The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.